Is There a Right to Remain Silent?

Coercive Interrogation and the Fifth Amendment After 9/11

Alan M. Dershowitz

Description

The right to remain silent, guaranteed by the famed Fifth Amendment case, Miranda v. Arizona, is perhaps one of the most easily recognized and oft-quoted constitutional rights in American culture. Yet despite its ubiquity, there is widespread misunderstanding about the right and the protections promised under the Fifth Amendment.

In Is There a Right to Remain Silent? renowned legal scholar and bestselling author Alan Dershowitz reveals precisely why our Fifth Amendment rights matter and how they are being reshaped, limited, and in some cases revoked in the wake of 9/11. As security concerns have heightened, law enforcement has increasingly turned its attention from punishing to preventing crime. Dershowitz argues that recent Supreme Court decisions have
opened the door to coercive interrogations--even when they amount to torture--if they are undertaken to prevent a crime, especially a terrorist attack, and so long as the fruits of such interrogations are not introduced into evidence at the criminal trial of the coerced person. In effect, the court has given a green light to all preventive interrogation methods. By deftly tracing the evolution of the Fifth Amendment from its inception in the Bill of Rights to the present day, where national security is the nation's first priority, Dershowitz puts forward a bold reinterpretation of the Fifth Amendment for the post-9/11 world. As the world we live in changes from a "deterrent state" to the heightened vigilance of today's "preventative state," our construction, he argues, must also change. We
must develop a jurisprudence that will contain both substantive and procedural rules for all actions taken by government officials in order to prevent harmful conduct-including terrorism.

Timely, provocative, and incisively written, Is There a Right to Remain Silent? presents an absorbing look at one of our most essential constitutional rights at one of the most critical moments in recent American history.

Is There a Right to Remain Silent?

Coercive Interrogation and the Fifth Amendment After 9/11

Alan M. Dershowitz

Table of Contents

Introduction1. What is the Right Against Self-Recrimination?2. The Supreme Court's Recent Decision3. The Limits of Textual Analysis in Constitutional Interpretation4. The Limits of Precedent: Which Way Does the Immunity Analogy Cut?5. The Limits of Historical Inquiry6. The Privilege Since 17917. The Relevance of Constitutional Policies Underlying the Right8. A Matter of InterpretationConclusion: The Case for a Preventative State

Is There a Right to Remain Silent?

Coercive Interrogation and the Fifth Amendment After 9/11

Alan M. Dershowitz

Author Information

Alan M. Dershowitz is currently the Felix Frankfurter Professor of Law at the Harvard Law School. He appears frequently in the mainstream media as a commentator and analyst on a variety of issues, including national security, torture, civil liberties, and the Middle East peace process. He is the author of Rights From Wrongs: A Secular Theory of the Origins of Rights, America on Trial: Inside the Legal Battles That Transformed Our Nation, Shouting Fire, and Preemption.

Is There a Right to Remain Silent?

Coercive Interrogation and the Fifth Amendment After 9/11

Alan M. Dershowitz

Reviews and Awards

"Is There a Right to Remain Silent? serves as a kind of primer in analyzing and interpreting constitutional law... Reading this book, one is reminded why Dershowitz is one of the very few American law professors whose work has crossed over into the mainstream... He has worked hard to make Is There a Right to Remain Silent? accessible to nonlawyers."--The New York Times Book Review

"When he speaks about criminal law and procedures of justice, subjects he has spent his career on, we should listen, particularly these days... what is most provocative is Dershowitz's conclusion, where he broadens his discussion to describe what he sees as a post-9/11 change in our justice system--a change so profound that it might be called a paradigm shift in criminal law."--The New York Times

"Provocative and erudite... A measured but urgent call to fill the legal "black hole" that the narrow Chavez decision creates regarding a right we all take for granted."--Publishers Weekly

"With his characteristic insightfulness and adroitness, Alan Dershowitz launches a powerful attack on the Supreme Court's position that Americans don't really have a right to remain silent--merely a right to exclude their compelled statements and any evidence derived therefrom at their subsequent criminal trials (if they ever have one)."--Yale Kamisar, Professor of Law, University of San Diego and Professor Emeritus of Law, University of Michigan

"This is a lucid, thought-provoking and exceptionally well-balanced analysis of the Fifth Amendment and, beyond that, the complexities of constitutional interpretation in general. Dershowitz lays bare the weakness and hypocrisy of 'original intent' arguments and the difficult choices we must all confront in making sense of the Fifth Amendment in the face of challenges that the Framers of our Constitution scarcely imagined."--Stephen Schulhofer, Robert B. McKay Professor of Law, New York University School of Law

"Alan Dershowitz shines a welcome bright light on a black hole in our constitutional landscape--the laws governing 'preventive' coercive interrogation. Few issues have been more controversial in the post-9/11 era, and this book succinctly and clearly reveals the failure of our constitutional jurisprudence to address it adequately. It should be read by all who care about torture and its regulation in America."--David Cole, Professor of Law, Georgetown University

"Carefully researched, strongly argued, thoughtfully reasoned, and extraordinarily well-crafted, Is There a Right to Remain Silent? examines a question vital to a free society, and far more difficult to answer than it might appear at first glance."--Susan R. Estrich, Robert Kingsley Professor of Law and Political Science, University of Southern California Gould School of Law